Dunne v Coombes

[1994] QCA 491

COURT OF APPEAL

[1994] QCA 491

DAVIES JA PINCUS JA DERRINGTON J

Appeal No 72 of 1994
PHILLIP FREDERICK DUNNE Appellant
and

RONALD EARNEST COOMBES Respondent

BRISBANE
..DATE 14/10/94
PINCUS JA: This is an appeal against an order made under
section 663B of the Criminal Code for payment of compensation
as contemplated by that section. The appeal is brought by the
respondent to an application under the section which related
to injuries suffered by the respondent to this appeal,
Mr Coombes, in 1989. In 1990, the appellant pleaded guilty to
having assaulted the respondent and occasioned him bodily
harm. The Judge fixed an amount of compensation in a sum of
$18,292 and ordered payment of costs.

The principal attack upon the Judge's decision is that, so the appellant says, His Honour erred in his application of section 663B(2) of the Code in determining the extent to which the award which otherwise might have been made should be reduced on account of the behaviour of the respondent contributing to the injuries suffered by him. The appeal therefore, as it appears to me, principally involves a factual question and that is whether the contribution which His Honour thought was proper was in fact adequate or should be interfered with.

It is necessary in the circumstances to go into the facts in some detail but it seems to me convenient to take them, at least in the first place, from the reasons for judgment of the learned District Court Judge. His Honour explains that both parties were residents of Cardwell and had - prior to certain events which I will mention - been friends. About one week prior to the assault there had been an exchange of words between the two of them and there was a further dispute between the parties which resulted in an angry exchange of words. I am taking the expression "angry exchange of words" from the Judge's reasons but Mr Smith who appeared for the appellant has suggested that His Honour has misconceived the facts and it will be necessary to say some more about that.

The "angry exchange of words" occurred on 2 July 1989 and in the course of that, His Honour found, a blow was delivered which struck the appellant in the region of his mouth. His Honour mentioned in his reasons the evidence which was given by the parties to the incident and by witnesses, Mr Herbertson, Mr Soutar and Mr Fiumara and concluded as follows.

Translating the names of the parties into the designations

they presently bear, his Honour said:

"I have little difficulty in concluding that the respondent

struck out twice in the direction of the appellant before
the appellant delivered the punch which gave rise to the
charge of assault. Of those two blows, I accept that one
of them made contact with the appellant in the area of
his mouth. Although there is evidence that the appellant
suffered a cut to the inside of his lip as a result of
that blow, the injury would appear to have been a

relatively minor one.

In those circumstances, although I am inclined to the view

that the blow was something more than the mere push
described by the respondent, it does not seem to me to be
of any great consequence whether the respondent used an
open hand as described by Mr Soutar or a closed fist as
described by Mr Herbertson. I am satisfied that the
force involved was relatively minor, particularly when
compared with the force of the blow delivered by the

respondent."

His Honour went on to discuss the question of contribution and
I will come back to that. Before doing so, it should be
explained what his Honour's findings were with respect to the
effect of the blow on the respondent. His Honour found that
there was a permanent loss of sight in the left eye and a
fracture of the left cheek-bone. His Honour discussed briefly
the history of the medical treatment which is set out in some
detail in the record and mentioned some aspects of it. He
said, speaking of the respondent:

"He has difficulties with his balance. He is uncomfortable in

social situations and is naturally concerned with the
possibility of any injury to his right eye (that being
the uninjured eye). The loss of sight has resulted in
significant interference with his life-style and he is no
longer able to pursue recreational activities which he

previously enjoyed."

Now, the essence of the appeal, as it seems to me, is the
contention that his Honour did not give proper weight to the
extent to which the evidence showed a case for reducing the
award on the ground of the respondent's behaviour. The
relevant provision, s 663B(2) reads as follows:

"In determining whether or not to make an order under

subsection (1) of this section (section 663B) and in
determining the amount of any order, the Court shall have
regard to any behaviour of the person aggrieved which
directly or indirectly contributed to the injury suffered
by him, and to such other circumstances as it considers

relevant" -

and certain circumstances are mentioned -

"and to the other provisions of this chapter."

There is no dispute that in the present case his Honour
applied that section, but according to the argument of
Mr Smith it was misapplied. His Honour's conclusions on the
point were as follows. His Honour said that the force
involved was relatively minor. He said there could be no
suggestion that a defence of self-defence applied, because the
plea of guilty constituted an admission of all the essential
elements of the offence charged. His Honour went on, and I
quote:

"However, while not affording an excuse for the appellant's

actions, I am satisfied that the respondent's behaviour
did contribute substantially to the assault which
followed. That is something to which I should have
regard under section 663B(2) and, in the circumstances, I
consider it appropriate to reduce by 20 per cent the
compensation that would otherwise be payable to the
respondent."

And his Honour went on to fix compensation in the amount of $20,943.75 in respect of the loss of the eye. He added a little to that in respect of additional injury and finished up, as I have mentioned, with the sum of $18,292, by making a 20 per cent reduction under s 663B(2). The course which the appellant has taken has been to refer us to a number of passages in the evidence which it is suggested throw doubt upon the correctness of the result at which the learned primary Judge arrived and some of those passages should be referred to.

In the evidence of the respondent, Mr Coombes, the following
passage occurred - this is in cross-examination:

"We've got to the point that he said to you, 'Well, that's

okay, Ron.'" -

Ron being the respondent -
"'The bank will wear me', or words to that effect?-- He said

something to that effect, yes.

And then you said to him, I suggest, 'That's wrong, you're a

liar. I've been in contact with the bank'?-- That is

correct.

Right. So - well, once again why didn't you tell people this

version of it before, if you're so sure it's correct

now?-- Do I have to tell people my business?

Now, Mr Coombes, that having been said, and you said it

angrily, you called him a liar?-- That's right, I
remember that.

Right. Mr Dunne said, 'You knock it off Coombes', or

something like that?-- No, I don't remember that.

He tried to calm things down?-- No, that would be wrong.
Right. And then you kept at him you said - if I can get the

words right, 'Yes. You're a fucking child, and a fucking
imbecile.' And I think you added 'idiot' as well?-- I

mentioned the 'idiot' in it, yes.

'A fucking child, a fucking imbecile, and a fucking idiot'?

Well, you conceded somewhere that you called him a

'bloody idiot'?-- Yes.

But I suggest you used all those other words, and the word

'fucking' as well?-- I don't believe I did.

And in - no sooner had you said that, I suggest, and the

physical contact began?-- That was right. That's when I

pushed Mr Dunne away.

I put it to you that so far from pushing him away you

delivered three - what I would describe as roundhouse

swipes at him?-- I did not."

Now, the Judge had that evidence before him. He also had
evidence to which we have been referred of Mr Soutar,
Mr Herbertson and Mr Fiumara. More as a sample than with any
intention of being exhaustive, I would refer to the evidence
of Mr Soutar as an indication of the sorts of conflicts which
his Honour had to resolve. Mr Soutar, at page 78 of the
Appeal Book is recorded as having said this:

"Now, you - you've referred to the, the first physical contact

being from Mr Coombes to - directed to Mr Dunne and
you've described that as a slap?-- Well, I thought it was
a slap. Yeah. I couldn't say for sure whether it was

clenched fist or not.

Well, a slap with an open hand?-- That's what I thought.
Yeah?-- Yeah.
All right. And, do you say that Mr Dunne then struck - struck

Mr Coombes and knocked him to the ground?-- No. Not straight after that.

All right. Well, was there some other striking of Mr Coombes

by Mr Dunne?-- No. I can't say for sure whether he
actually hit them or as I said before, whether they were
actually punches or whether he was defending himself.

Yeah?-- But I presume that they were punches. That's all." Now, as counsel for the appellant, Mr Smith, has submitted to us, Mr Herbertson gave an account of that which was rather more favourable to his side than that which Mr Soutar gave. But it appears to me that, in these circumstances, unless some reason appears to show that his Honour was wrong, one must accept his Honour's resolution of the conflict, in so far as his Honour found it necessary to resolve it.

The critical findings appear to me to be these. His Honour accepted that there were blows struck by the respondent. He accepted that there was an injury caused by one of them which he described as relatively minor and he said that the force involved was relatively minor, particularly when compared with the force of the blow delivered by the appellant. He also accepted, as I have mentioned, that there was an angry exchange of words. In these circumstances and in the light of the fact that the respondent, as Mr Smith has emphasised, seemed to think there was something to be said for the view that he was really the aggressor, some might regard the assessment the Judge made on the proper reduction of the compensation, namely 20 per cent, as rather generous to the respondent. However, much depends upon the impression which the parties made and which the witnesses made upon the Judge when they gave their evidence.

He saw the witnesses and heard the evidence and we have not. The conclusion at which I have arrived is that the apportionment which his Honour made of 20 per cent, although some might, reading the record, think it to be a little generous, cannot be disturbed here.

I am far from convinced that the appellant's contention that we should conclude that the assessment of 20 per cent was erroneous, can be accepted. The discretion given by 663B(2) is very much one for the primary Judge and unless one can predicate of the Judge that he has erred in any factual respect, which is not really urged here, or has completely misunderstood the weight of the evidence, which also is not really urged here, it does not appear to me to be enough to say, "Well, if the Judge had given more weight to one witness' evidence than another's, he might well have arrived at a different conclusion."

To return to the grounds of appeal, it should be mentioned that the notice of appeal raises the ground of delay but that is not pursued. It also raises as a ground that the Judge erred in law in finding that there can be no suggestion in these proceedings that he (the appellant) was acting in self defence.

In my view, that may be a little bit too broadly stated because, plainly, under section 663B(2) self defence can be taken into account in determining the extent to which the claimant should have his assessment reduced.

What the Judge meant, in my opinion, was that there can be no suggestion that the appellant was acting in self defence to the extent of having a defence to the charge under the Code. His Honour did not, in my opinion, ignore the character of the appellant's actions in so far as they were a response to what was done on the other side.

The conclusion at which I have arrived then, as I have already indicated, is that the assessment which the primary Judge made was a discretionary one, dependent upon his evaluation of the witnesses and I do not think we would be justified in interfering with it. I would therefore dismiss the appeal.

DAVIES JA: I agree.

DERRINGTON J: I agree.

DAVIES JA: The appeal is dismissed.

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